§56.6 Analysis

• Jurisdiction: Washington

§56.6 ANALYSIS

This section analyzes the applicability of CR 56 and FED. R. CIV. P. 56.

(1)Time and notice

Time and notice requirements of the rule are discussed below.

(a)When the motion may be made

A party seeking affirmative relief, whether damages, declaratory relief, or equitable relief, may move for a summary judgment at any time after the time has expired for the opposing party to appear/not answer, State ex rel. Carroll v. Simmons, 61 Wn.2d 146, 149-50, 377 P.2d 421 (1962), cert, denied, 374 U.S. 808 (1963)), or after the moving party is served with a motion for summary judgment. The defendant is not required to answer before moving for summary judgment. Alaska Indep. Fishermen's Marketing Ass'n v. New England Fish Co., 15 Wn.App. 154, 160, 548 P.2d 348 (1976); CR 56(a). Aparty from whom such relief is sought may move for summary judgment at any time. CR 56(b).

(b)Notice

There must be at least 28 days notice given to the nonmoving party. CR 56(c). (The time period is 31 days if the opposing party is served by mail. CR 6(e)). The requirement of 28 days notice is to allow adequate time for a response. Failure to object to untimely service of the motion waives the defect.

(c)When opposing party needs additional time to defend against the motion

On occasion it is not possible for the party opposing a motion for summary judgment to prepare the necessary responding papers before the time set for hearing the motion. Under CR 56(f), if it appears from the affidavits that facts essential to justify opposition to the motion cannot be presented "for reasons stated," the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or discovery to be taken. Although CR 56(f) does not expressly require a motion for continuance, such a motion could be made in accordance with CR 6(b). In Cofer v. Pierce County, 8 Wn.App. 258, 263-64, 505P.2d476 (1973), the court stated:

We believe that when a trial court has been shown a good reason why an affidavit of a material witness cannot be obtained in time for a summary judgment proceeding the court has a duty to accord the parties a reasonable opportunity to make their record complete before ruling on a motion for a summaryjudgment, especially where the continuance of the motion would not result in a further delay of the trial. Interpreting the proposed evidence in a light most favorable to the nonmoving party, as we must, we find that the evidence plaintiff's counsel alleged he could obtain would present a genuine issue of material fact. We therefore conclude that a failure to accord the non-moving party a reasonable opportunity to show the existence of an issue of material fact constitutes an abuse of discretion.

CR 56(f) is to be applied with a spirit of liberality. See Coggle v. Snow, 56 Wn.App. 499, 508, 784 P.2d 554 (1990) ("The primary consideration in the trial court's decision on the motion for a continuance should have been justice."). Atrial court does not abuse its discretion in denying a CR 56(f) motion for continuance when (1) the requesting party does not have a good reason for the delay in obtaining the evidence, (2) the requesting party does not indicate what evidence would be established by further discovery, or (3) the new evidence would not raise a genuine issue of fact. Qwest Corp. v. City ofBellevue, 161 Wn.2d 353, 369, 166 P.3d 667 (2007). In Van Dinter v. City ofKennewick, 64 Wn.App. 930, 937, 827 P.2d 329 (1992), aff'd, 121 Wn.2d 38, 846 P.2d 522 (1993), the court held that a trial court did not abuse its discretion in denying a continuance under CR 56(f) when the purpose of the continuance was to conduct discovery regarding a matter that would not affect the outcome of the case. Hewitt v. Hewitt, 78 Wn.App. 447, 455, 896P.2d1312 (1995), review denied, 133 Wn.2d 1030 (1998) (court's decision discretionary and reversible only for abuse of discretion). In the absence of a properly supported motion for a continuance, the trial court should proceed to decide the motion for summaryjudgment. Shoberg v. Kelly, 1 Wn.App. 673, 676,463P.2d280 (1969), review denied, 78 Wn.2d 992 (1970)

A CR 56(f) affidavit need not contain evidentiary facts going to the merits of the case; rather, it is merely a sworn statement explaining why those facts cannot yet be presented. The affidavit must show that the party opposing the summary judgment cannot, for the reasons stated, present by affidavit facts "essential to justify his opposition ...." It should state what discovery needs to be done, what counsel believes the discovery will show, and why the facts are "essential." See Shoberg, 1 Wn.App. at 676-77; State ex rel. Citizens Against Tolls (CAT) v. Murphy, 151 Wn.2d 226, 237, 88P.3d375 (2004).

If the party opposingthe summaryjudgment motion so requests, the courts have generally required that necessary discovery be completed before the motion is heard, provided that the party seeking relief under CR 56(f) has acted diligently. The opposing party is not automatically entitled to relief under CR 56(f), however. In Lewis v. Bell, 45 Wn.App. 192, 196, 724 P.2d 425 (1986), and Transamerica Insurance Group v. Chubb & Son, Inc., 16 Wn.App. 247, 253, 554 P.2d 1080 (1976), review denied, 88 Wn.2d 1015 (1977), the Court of Appeals held that good reasons for additional time had not been presented. In the latter case, the motion for continuance was not made until six days after the oral decision on the summary judgment motion.

Practice Tip: The easiest and least expensive means of gaining more time to respond to a motion for summary judgment is by seeking agreement with the moving party's counsel.

(2)Evidence on motions for summary judgment— affidavits

Affidavits are not required, but are usually the best way of supporting or opposing a motion for summary judgment. Affidavits should closely resemble the form that the affiant's testimony would take in court, Meadows v. Grant's Auto Brokers, Inc., 71 Wn.2d 874, 878-79, 431 P.2d 216 (1967); and the plain standards of CR 56 must be complied with in summary judgment proceedings, Melville v. State, 115 Wn.2d 34, 36, 793 P.2d952(1990);Grimwoodv. Univ. ofPugetSound,Inc., 110Wn.2d 355, 359-60, 753P.2d517 (1988). The rule is settled that "[t]he court does not weigh credibility in deciding a motion for summary judgment." Jones v. State, 170 Wn.2d 338, 354, 242P.2d825 (2010) (quoting 14A Karl B. Tegland, Washington Practice: Civil Procedure §25:16 (4th ed. 2009)). Affidavits must be made on personal knowledge, set forth facts that would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters therein. CR 56(e); McKee v. Am. Home Prods. Corp., 113 Wn.2d 701, 706, 782P.2d1045 (1989); Davies v. Holy Family Hosp., 144 Wn.App. 483, 492, 183P.3d283 (2008). Sworn or certified copies of any documents referred to in the affidavit must either be attached to the affidavit or served with it. CR 56(e). Affidavits may be supplemented with depositions, answers to interrogatories, or further affidavits. CR 56(e). Affidavits must not be made in bad faith or with the sole purpose of delaying proceedings. CR 56(g).

CR 56(e) provides that sworn or certified copies of all papers or parts of papers referred to in an affidavit shall be attached to the affidavit or served with it. Mithoug v. Apollo Radio of Spokane, 128 Wn.2d 460, 463, 909 P.2d 291 (1996), review denied, 132 Wn.2d 1004 (1997). When depositions are quoted in an affidavit, sworn or certified copies of the depositions should be attached to the affidavit. Caldwell v. Yellow Cab Serv.Jnc, 2 Wn.App. 588, 592, 469 P.2d 218 (1970).

Practice Tip: Consider highlighting pertinent portions of the deposition transcript to focus the court's attention on significant testimony. State in the authenticating declaration that pertinent portions have been highlighted.

(a) Time for submitting affidavits

The affidavits of the moving party must be served with the motion itself, not later than 28 calendar days before the hearing. The adverse party may then serve opposing affidavits not later than 11 calendar days before the hearing. CR 56(c). Note that CR 56(e) provides for supplementation of affidavits with further affidavits. Additionally, CR 6(b) can be construed to allow tardy service of an affidavit.

Even if the court has filed a memorandum opinion ruling on a motion for summary judgment, a party may still place additional matters before the court in an effort to change its mind until such time as an order is entered formally disposing of the motion. Felsman v. Kessler, 2 Wn.App. 493, 498, 468 P.2d 691, review denied, 78 Wn.2d 994 (1970). Prior to the entry of a formal order granting or denying a motion for summary judgment, a party may properly file affidavits to assist the court in determining whether there exists an issue of material fact, and these matters must be considered by the court. Cofer, 8 Wn.App. at 261.

Caveat: Prior to the CR 56 amendments establishing the 21-day and 10-day requirements for service of affidavits, the Court of Appeals in Cofer, 8 Wn.App. at 261, and Felsman, 2 Wn.App. at 498, held that the trial court should consider any affidavit filed prior to the entry of a formal order of summary judgment, even if an oral decision, or even a memorandum decision, has already been rendered. Although trial courts may continue to have some discretion in this regard, the amended rule makes clear that this should be done only in exceptional circumstances. The 1993 amendments to CR 56(c) extending the requirements for filing and service of affidavits to 28 and 11 days further reinforce the conclusion that trial courts should exercise discretion in this regard only in exceptional circumstances.

(b) Form and content of affidavits

The basic principles governing the form and content of...